Cider Riot v. Patriot Prayer USA

544 P.3d 363

330 Or.App. 354

CIDER RIOT, LLC and Abram Goldman-Armstrong, Plaintiffs-Respondents,

v.PATRIOT PRAYER USA, LLC; Joseph "Joey" Gibson; Ian Kramer; Christopher Ponte; David Willis; and Mackenzie Lewis, Defendants-Appellants,andMatthew Cooper and John Does 1-25, Defendants.

A173013

Court of Appeals of Oregon.

Submitted May 7, 2021

January 31, 2024

Multnomah County Circuit Court, 19CV20231; Andrew M. Lavin, Judge.

David Willis filed the brief pro se.

Mack Lewis filed the brief pro se.

Christopher Ponte filed the brief pro se.

Ian Kramer filed the brief pro se.

James L. Buchal and Murphy & Buchal LLP, Portland, filed the briefs for appellants Patriot Prayer USA, LLC, and Joseph "Joey" Gibson.

Thomas M. Christ and Sussman Shank LLP; Clifford S. Davidson and Snell & Wilmer LLP, Portland; and, Juan C. Chavez and Oregon Justice Center Portland, filed the brief for respondents.

Before Kamins, Presiding Judge, Lagesen, Chief Judge, and Jacquot, Judge.

LAGESEN, C. J.

[1] ₃₅₆Although "[n]o federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and threats of violence[,] * * * the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability and on the persons who may be held accountable for those damages." N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 102 S Ct 3409, 73 L Ed 2d 1215 (1982). In this case, Plaintiffs Cider Riot, LLC, and Goldman-Armstrong seek to recover economic and noneconomic damages for alleged negligence, trespass, intentional infliction of emotional distress (IIED), and intentional interference with economic relations (HER) from defendants Gibson, Patriot Prayer USA, LLC, Kramer, Ponte, Willis, and Lewis. The individual defendants associate with the group or movement known as Patriot Prayer; plaintiffs are a bar and its owner that associate with, and host others who associate with, the group or movement known as Antifa.¹ The two groups embrace ideologies that are repugnant to each other.² The torts are alleged to ₃₅₇have occurred (1) when the individual defendants went to the bar where, from the public sidewalk, they engaged with bar patrons associated with Antifa; and (2) through certain online postings made by de- fendant Gibson. Defendants filed special motions to strike under ORS 31.150(2)(c) and (d),³ asserting that plaintiffs’ claims arose out conduct or statements entitled to First Amendment protection. The trial court denied those motions, entering limited judgments on the denial required by ORS 31.150(1). Defendants have appealed those judgments. For the reasons that follow, we affirm as to defendants Kramer, Ponte, Willis, and Lewis, reverse with respect to defendant Patriot Prayer USA, LLC, and reverse in part with respect to defendant Gibson.

I. LEGAL FRAMEWORK

This case is before us on review of the trial court’s denial of defendants’ special motions to strike under Oregon’s anti-SLAPP statute, ORS 31.150. The legislature enacted that statute to protect defendants from lawsuits targeting their exercise of protected First Amendment rights. See Staten v. Steel, 222 Or App 17, 30, 191 P.3d 778 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009) (internal citations and quotation marks omitted). As explained further below, although plaintiffs’ theory of liability is imprecise, plaintiffs generally seek to hold defendants liable in tort (1) for their roles in a political protest of plaintiffs’ business that resulted in violent interactions between plaintiffs’ patrons and some defendants, and (2) for certain online comments made by some defendants about plaintiffs’ business, including online comments encouraging readers to report any complaints they had about plaintiffs’ business to the Oregon Liquor Control Commission (OLCC).⁴ To provide ₃₅₈context for the parties’ arguments, and our analysis of them, we provide an overview of Oregon’s anti-SLAPP procedures, and the applicable First Amendment standards, before turning to the primary question before us: whether, with respect to defendants Gibson and Patriot Prayer USA, LLC, plaintiffs have presented a prima facie case that those defendants engaged in conduct for which the First Amendment permits the imposition of tort liability.

A. Oregon’s Anti-SLAPP Statutes

The Oregon legislature enacted Oregon’s anti-SLAPP statutes to protect defendants against strategic lawsuits intended to quash the exercise of First Amendment rights. See Staten, 222 Or App at 30, 191 P.3d 778 (explaining history of the statute). The purpose of the provisions is "to provide for the dismissal of claims against persons participating in public issues * * * before the defendant is subject to substantial expenses in defending against them." Id. at 29, 191 P.3d 778. To that end, ORS 31.150 authorizes a defendant in a civil action to file a special motion to strike any claim arising out of protected speech and conduct:

"A special motion to strike may be made under this section against any claim in a civil action that arises out of:

"(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;

"(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;

"(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or

"(d) Any other conduct in furtherance of the exercise of the constitutional right of assembly, petition or association or the constitutional right of free speech or free- dom of the press in connection with a public issue or an issue of public interest."

ORS 31.150(2). This case, as discussed further below, implicates ORS 31.150(2)(d). Plaintiffs’ claims arise out of ₃₅₉defendants’ activities protesting plaintiffs’ business because of plaintiffs’ association with particular viewpoints, conduct in furtherance of defendants’ constitutional rights of assembly, association, and free speech.

[2] A defendant wishing to invoke the protections of ORS 31.150 with respect to a claim or claims may file a special motion to strike within 60 days of service of the complaint or later, with the court’s permission. ORS 31.152(1). As with motions to dismiss under ORCP 21, a defendant must file a special motion to strike before filing an answer. Horton v. Western Protector Insurance Company, 217 Or App 443, 453, 176 P.3d 419 (2008).

[3] A moving defendant bears "the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in" ORS 31.150(2). ORS 31.150(3). Once a court determines that the defendant has made the necessary showing, "the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case." ORS 31.150(3). To establish a prima facie case on a particular claim, a plaintiff must produce evidence sufficient to permit a reasonable factfinder to find in the plaintiff’s favor on the claim. Handy v. Lane County, 360 Or. 605, 622-23, 385 P.3d 1016 (2016) (explaining plaintiff’s burden of production in the context of a special motion to strike); Snook v. Swan, 292 Or App 242, 246-47, 423 P.3d 747 (2018) (explaining that a plaintiff must produce evidence sufficient to permit a reasonable factfinder to find that plaintiff proved the elements of their claim) (citing Wingard v. Oregon Family Council, Inc., 290 Or App 518, 522-23, 417 P.3d 545, rev. den., 363 Or. 119, 421 P.3d 359 (2018)).

[4] In evaluating special motions to strike under ORS 31.150, "we ‘liberally’ construe the statute ‘in favor of the exercise of the rights of expression’ it protects." DeHart v. Tofte, 326 Or App 720, 725, 533 P.3d 829, rev. den., 371 Or. 715, 539 P.3d 787 (2023) (quoting ORS 31.152(4)); see also C.I.C.S. Employment Services v. Newport Newspapers, 291 Or App 316, 320, 420 P.3d 684 (2018) (so stating). Consistent with that statutory purpose, the Oregon Supreme Court has recognized that ₃₆₀where a claim rests on speech or conduct in furtherance of the rights of petition, assembly, or association, it is proper for a court to strike or dismiss the claim if the statements or conduct on which the claim rests are protected by the First Amendment and, therefore, not actionable. See Neumann v. Liles, 358 Or. 706, 708, 722, 724, 369 P.3d 1117 (2016) (holding that, in ruling on special motion to strike, trial court properly dismissed defamation claim because claim was predicated on statements that were protected by the First Amendment); see also Campos v. Jensen, 296 Or App 402, 408, 414-15, 439 P.3d 540 (2019) (under Neumann, trial court correctly granted the special motion to strike the plaintiff’s claims for defamation and invasion of privacy where statements on which claims rested were not actionable under the First Amendment); cf. Davoodian v. Rivera, 327 Or App 197, 215-16, 535 P.3d 309 (2023) (holding that, where a claim for intentional infliction of emotional distress rested on privileged statements that were not actionable, the defendant’s special motion to strike should have been granted). We proceed to discuss the applicable First Amendment standards.

B. First Amendment Standards

1. Standards for imposition of liability arising out of protest activity.

[5] The United States Supreme Court has recognized that the First Amendment rights to free assembly, association, and speech afford broad protection to protest activity. That protection means a state’s ability to impose liability—civil or criminal—in connection with such activity is limited. Part of the rationale for this...